Yet, the FMLA topic de jour is no less important because I address below an issue critical to FMLA compliance: How often must an employer check an employee’s eligibility for FMLA leave?

Screw it up and you could be looking at significant FMLA liability. Get it correct and you have just saved your boss hundreds of thousands of dollars in legal fees and a possible judgment (for which he/she may never thank you).

As we recently have turned the calendar to a new year, this article is particularly important to my peeps out there who track FMLA leave based on a calendar year. But I cover all the 12-month FMLA periods below:

First, Let’s Start with the Rule

Whenever an employee requests FMLA leave, the employer first must check whether the employee is eligible for FMLA leave. The critical rule is at 29 CFR 825.300(b)(1):

Eligibility notice. When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances. . . Employee eligibility is determined (and notice must be provided) at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period .. . All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period. (My emphasis)

What are the takeaways from this Rule?

There are two:

The employer must check eligibility at the first instance of FMLA leave for each different FMLA reason in a 12-month FMLA period.

Once eligibility is established for a particular FMLA reason, eligibility for FMLA leave as to that reason does not change for the remainder of the FMLA year.

I illustrate this rule the only way I know how — through examples.

Rolling year

Let’s assume you use a rolling FMLA year (or look back period). Let’s further assume that your employee, Johnny, requests leave to begin on the following days:

Intermittent leave for migraine headaches as of March 2, 2017

Intermittent leave for chronic bad back as of November 17, 2017

Continuous leave of absence for back surgery (to fix said bad back) on December 13, 2017

When do you check eligibility for these leave requests? First, you check eligibility as of March 2, 2017 (the date leave begins for migraines) because it is the first time in the FMLA year that Johnny needs leave for migraines. Second, you check eligibility again as of November 17, 2017 (the date leave begins for the bad back) because it is the first time in the FMLA year that Johnny needs leave for his bad back.

How long is FMLA Eligibility good for?

Let’s assume Johnny is FMLA-eligible on both of these dates for migraines and the bad back, respectively. In a rolling year, FMLA eligibility for each condition remains in place for the 12-month period beginning with the first day of leave for the condition. So, for migraines, Johnny’s is FMLA eligible through March 1, 2018. Therefore, we would not check eligibility again until he needs leave for migraines the first time on or after March 2, 2018. For his bad back, Johnny’s eligibility is all clear through November 16, 2018. We would not check eligibility for his back until he needs leave again for this condition the first time on or after November 17, 2018.

Does the Need for Continuous vs. Intermittent Leave Change Things?

What about the continuous leave Johnny required for surgery on his bad back in December 2017? Shouldn’t we check eligibility because he’s now seeking a continuous (instead of intermittent) period of leave? In a word, no. Once Johnny became eligible for FMLA leave for his bad back, he maintains eligibility for that same reason for the remainder of the FMLA year. The fact that the need for leave changed from intermittent to continuous doesn’t change the reason for the leave, so eligibility need not be checked until November 2018 or after.

Calendar year or fixed year

Checking eligibility is generally the same when you maintain a 12-month FMLA period based on a calendar year. If you are using a calendar FMLA year, the key difference is that you will check eligibility for the first instance of leave for each different condition on or after January 1of each year.

Again to illustrate, let’s go back to the example above. For Johnny’s bad back, eligibility was first determined as of November 17, 2017. Because you maintain a calendar year FMLA cycle, you will need to check eligibility again upon the first instance of leave for a bad back on or after January 1, 2018.

If Johnny needs leave on January 1 for his back condition, doesn’t it seem a bit strange that you would need to check eligibility for the same reason a mere six weeks after you last checked eligibility? I hear you loud and clear, but we still must follow the regulations, which unambiguously tell us to check eligibility for the first instance of FMLA leave in a new FMLA year. For those FMLA nerds who really want to dive into this topic, take a look at Davis v. Michigan Bell Telephone, in which the court made clear that an employer must check eligibility in the first instance on or after January 1 when the employer is using a calendar year FMLA cycle.

“Look forward” year

Some employers base the 12-month FMLA period on a “look forward” period measured forward from the date any employee’s first FMLA leave. Testing for eligibility is the same as the “rolling year” above. You check eligibility for the first instance of FMLA leave for a particular reason, at which point they are eligible for that reason for the following 12-month period. Upon the first instance of FMLA leave for this condition in the next FMLA year, eligibility should be checked again.

For what it’s worth, if you need a refresher about which 12-month FMLA period is best to use, and an explanation of all your options, take a look at one of my previous posts on the topic.

About Jeff Nowak

Jeff Nowak is co-chair of the labor and employment practice at Franczek Radelet, where he represents employers in all aspects of employment law. His clients praise him as a trusted business partner who is acutely aware of their business goals and the impact employment decisions have on their operations. A staunch advocate and effective litigator for his clients, Jeff also isn’t afraid to be candid with clients where compliance issues or litigation must be resolved to meet business objectives. He is a nationally-recognized leader in the FMLA and ADA, and his passion for the FMLA shows through on this blog.